TAVELLA_GALLEYS 5/9/2011 4:34:36 PM ADVICE AND CONSENT FOR FEDERAL JUDGES: A NEW ALTERNATIVE BASED ON CONTRACT LAW David F. Tavella* and Anne Marie Tavella*** It will come as no surprise that there is a serious problem regard- ing the number of vacancies in the United States federal courts, both in the courts of appeals and the district courts. Approximately 11% of the available judicial seats are vacant.1 In 2010, a position in the Court of Appeals for the Fourth Circuit was filled after remaining vacant since 1994.2 This causes an obvious detriment to the effi- ciency of the courts. This problem is not new and not confined to any one party. In De- cember 2000, there were sixty-seven vacancies; in December 2001 this increased to 101 vacancies; December 2010 showed ninety-two vacancies.3 It is clear that this problem persists whether the Presi- dent is a Democrat or Republican and whether there is a Democratic or Republican majority in the Senate. Indeed, President Obama is having trouble getting judicial nominations approved even with a Democratic Senate.4 There have been many proposals about how to remedy the situa- tion, and numerous articles have addressed the Senate’s duty and obligations regarding the nomination and confirmation of judges. While some articles argue that the Senate should have a role in the nomination process,5 others argue that the Senate should have *- Partner, Wade Clark Mulcahy, New York, New York. J.D., Georgetown University Law Center. ** Associate, Oles Morrison Rinker & Baker LLP, Seattle, Washington. J.D., Northwestern University School of Law. 1. Judicial Vacancies, U.S. COURTS, http://www.uscourts.gov/JudgesAndJudgeships/ JudicialVacancies.aspx (last visited Apr. 16, 2011). 2. See Archive of Judicial Vacancies, U.S. COURTS, http://www.uscourts.gov/JudgesAnd Judgeships/JudicialVacancies/ArchiveOfJudicialVacancies.aspx (last visited Apr. 16, 2011). 3. See id. 4. David Ingram, Slow Going in Senate for DOJ, Judicial Nominees, LEGAL INTELLIGENCER, Jan. 5, 2010; see also IAN MILLHISER, CTR. FOR AM. PROGRESS, FALLING OFF A CLIFF: JUDICIAL CONFIRMATION RATES HAVE NOSEDIVED IN THE OBAMA PRESIDENCY 2 (2010), available at http://www.americanprogress.org/issues/2010/07/judicial_confirmations.html. 5. See, e.g., David A. Strauss & Cass R. Sunstein, The Senate, the Constitution and the Confir- mation Process, 101 YALE L.J. 1491 (1992). 521 TAVELLA_GALLEYS 5/9/2011 4:34:36 PM 522 DREXEL LAW REVIEW [Vol. 3:521 none.6 This Article will briefly discuss the two points of view, and propose a compromise: if the President accepts advice from the Sen- ate, through one of the senators of a state that has an open seat, the Senate would be required to timely vote on the nomination. If the President does not accept one of the suggested nominees, and the President is always free to nominate anyone, the Senate can take its time deliberating the qualifications of the nominee. One issue regarding the Senate’s role is whether the Constitution requires the Senate to timely vote on a nominee. This issue will be discussed in the context of whether the Constitution is a contract. Some commentators argue that the Constitution is a contract, and thus, contract law should apply in its interpretation. Indeed, at least one state has determined that its state constitution is a contract be- tween the government and the people of the state.7 While this anal- ogy has not always been accepted, it is a good starting point to dis- cuss whether the Senate has certain obligations to timely vote on a nominee. This Article examines these issues and proposes a solution for timely voting on judicial nominations in the United States courts of appeals and the United States district courts. I. THE SENATE’S “ADVICE AND CONSENT” ROLE IN THE APPOINTMENT OF FEDERAL JUDGES The nomination and appointment of federal judges is governed by the Constitution. Article II, Section 2, Clause 2 states as follows: [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nomi- nate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Con- suls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein oth- erwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such 6. See, e.g., John O. McGinnis, The President, the Senate, the Constitution, and the Confirmation Process: A Reply to Professors Strauss and Sunstein, 71 TEX. L. REV. 633 (1993). 7. Myers v. City of McComb, 943 So. 2d 1, 7 (Miss. 2006). TAVELLA_GALLEYS 5/9/2011 4:34:36 PM 2011] ADVICE AND CONSENT FOR FEDERAL JUDGES 523 inferior Officers, as they think proper, in the President alone, in the Courts of Law, or the Heads of Departments.8 The Appointments Clause “is among the significant structural safeguards of the constitutional scheme.”9 Under the Appointments Clause, the President of the United States has exclusive power to se- lect the principal officers of the United States.10 This prevents con- gressional encroachment upon the executive and judicial branches.11 This arrangement was designed to ensure a higher quality of ap- pointments because it was anticipated that the President would be less vulnerable to interest-group pressure and personal favoritism.12 The President’s power to select officers of the United States was not left unguarded. Article II requires the advice and consent of the Senate.13 The Advice and Consent Clause serves to both curb execu- tive abuses of the appointment power and to promote a judicious choice of persons who would be filling the various offices. By re- quiring the joint participation of the President and Senate, the Ap- pointments Clause was designed to “ensure public accountability for both the making of a bad appointment and the rejection of a good one.”14 There has been much discussion as to whether the Appointments Clause gives the Senate the power to advise on a nomination and to consent on the appointment, or whether the Senate’s role is limited to consent. The Constitution in itself seems to separate the two clauses by a comma: “[the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . .”15 Some scholars argue that this gives the Senate an obligation to ad- vise on a nominee.16 Professors David Strauss and Cass Sunstein ar- gue that the Constitution contemplated an active and independent role by the Senate.17 Thus, to Strauss and Sunstein, “[t]hese words 8. U.S. CONST. art. II, § 2, cl. 2. 9. Edmond v. United States, 520 U.S. 651, 659 (1997). 10. See Buckely v. Valeo, 424 U.S. 1, 132 (1976) (per curiam). 11. See id. (citations omitted). 12. See id. at 129–32. 13. See U.S. CONST. art. II, § 2, cl. 2. 14. Edmond, 520 U.S. at 660. 15. See U.S. CONST. art. II, § 2, cl. 2. 16. Strauss & Sunstein, supra note 5, at 1493. 17. Id. at 1494 (“The Constitution fully contemplates an independent role for the Senate in the selection of Supreme Court Justices.”). TAVELLA_GALLEYS 5/9/2011 4:34:36 PM 524 DREXEL LAW REVIEW [Vol. 3:521 assign two distinct roles to the Senate—an advisory role before the nomination has occurred and a reviewing function after the fact.”18 Unfortunately, the Constitution is not a model of clarity. The use of both words—“advice” and “consent”—seems to indicate a dual role for the Senate. Also, the use of the comma, which seems to separate the two clauses, could indicate that the President will nominate with the advice of the Senate and appoint with the consent of the Senate. This, however, makes the “consent” aspect superflu- ous. If the Senate has already advised the President on a nominee, it could be assumed that the Senate would also consent to the appointment. Strauss and Sunstein point to specific instances where the advice of the Senate was received before the nomination was made.19 In 1869, President Grant nominated Edwin Stanton after receiving a petition signed by a majority of both houses of Congress.20 In 1932, President Hoover met with a senator who requested that he appoint a liberal justice to replace Oliver Wendell Holmes; Hoover ap- pointed Benjamin Cardozo, who had previously been at the bottom of the President’s list of preferred nominees.21 The actual procedure for getting advice from the Senate before a nomination has proved problematic and not entirely practical. In the case of Justice Cardozo, it appeared that two senators influenced President Hoover to appoint Cardozo to the bench. This appoint- ment was not based on advice from the entire Senate but merely two of its members. It seems unlikely that the Framers would have envi- sioned two senators requesting a nomination to be considered ad- vice from the Senate. Professors Strauss and Sunstein offer several simple options on how the President may get advice from the Senate.22 One of these is for the President to solicit a list of preferred candidates.23 Key sen- ators could then review and comment on choices, or there could be ongoing discussions between certain senators and the White 24 House. 18. Id. at 1495. 19. See id. at 1501. 20. See id. 21. See id. 22. Id. at 1518–20. 23. Id. at 1518. 24. Id. TAVELLA_GALLEYS 5/9/2011 4:34:36 PM 2011] ADVICE AND CONSENT FOR FEDERAL JUDGES 525 Strauss and Sunstein’s suggestions have been rebutted by profes- sor John O.